31st July, 2012
The law on anti-discrimination in this country currently protects those who face discrimination on the basis of certain protected characteristics such as gender, sexual orientation, religion or belief, race, age or disability. The list of protected characteristics does not include weight and so those who wish to claim discrimination on the grounds of their weight must show that their condition amounts to a disability. A disability is defined as “a physical or mental impairment which has a substantial and long-term adverse affect on their ability to carry out normal day-to-day activities”. As a result there is no set weight at which obesity becomes a disability and those who cannot meet the required definition of disability are unable to claim for discrimination.
This current stance may not be providing sufficient protection as a survey recently undertaken by Personnel Today has found that clinically obese individuals are more likely to be discriminated against during the recruitment process, are more likely to be made redundant than other employees and are less likely to be promoted. A study in the Journal of Obesity, has reported that the United States of America has seen a 66% increase in weight bias over the past 10 years. As a result there has been a shift towards recognising obesity as a disability in American employment law.
In Michigan, weight discrimination within the work environment has been declared illegal and last week, a court in Montana ruled obesity discrimination is contrary to state human rights law. The case in question was BNSF Railway Co. v. Feit, in which Mr Feit believed he was refused a job at a railway company because of his weight. His offer of employment was conditional on him passing: a drug screening, a physical examination and background check. However, on successful completion of those tests, he was told he would only be given a job if he lost 10% of his body weight and did further physical examinations; which he was forced to pay for himself. Mr Feit lost the weight and underwent the required tests but was unable to afford the sleeping study which cost $1,800. The company refused to hire him. Feit claimed the railway company had discriminated against him and that his obesity amounted to a physical disability. American law defines a “physical or mental disability” as “a physical or mental impairment that substantially limits one or more of a person’s major life activities; a record of such an impairment; or a condition regarded as such an impairment.” The court explained, “the definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” It was held that Mr Feit’s weight amounted to a disability and as a result the company had unlawfully discriminated against him. After a series of appeals, the Montana Supreme Court ruled obesity is a disability covered by state anti-discrimination laws. This decision follows on from a Louisiana federal court ruling in April that obesity is recognised under anti-discrimination law even where it is unrelated to a medical condition.
A report published in this country by the All Party Parliamentary Group on Body Image and the Central Young Men’s Christian Association has recommended that Members of Parliament look into making “appearance-based discrimination” against the law. On average British people are nearly three stone heavier than they were fifty years ago and as obesity levels continue to rise, we will most likely see more and more cases of employees wishing to claim against their employers for weight- related discrimination. For now obesity remains outside of anti-discrimination legislation but perhaps one day we will follow in the footsteps of the United States and extend the definition of disability to include obesity more readily or even add obesity to the list of characteristics which are protected from discrimination.
For advice on discrimination issues, please contact Claire Brook on 01244 405575 or email [email protected].
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